Insurance co. sues Will County, 12 towns over flood damage

April 29, 2014|By Geoff Ziezulewicz | Tribune reporter

A man crosses a flooded Plainfield street on April 18, 2013. An insurance company is suing Plainfield, Will County and 11 other towns claiming they did not do enough to prevent and mitigate flood damage during the heavy rains of April 17, 2013 and April 18, 2013. (Geoff Ziezulewicz, Chicago Tribune)

An insurance company is suing Will County and 12 county municipalities, alleging that the governments did not do enough to prevent and mitigate flood damage caused by the heavy rains of April 2013.

The lawsuit, by Illinois Farmers Insurance Company and Farmers Insurance Exchange, as well as its subsidiaries, filed the "proposed class action" on behalf of itself, other property insurance companies, those insured by the companies and property owners who "sustained property and other economic losses" due to flooding that took place on April 17 and 18, 2013, the lawsuit states.

The lawsuit, filed about two weeks ago, lists the county, as well as Naperville, Bolingbrook, Plainfield, New Lenox, Joliet, Shorewood, Manhattan, University Park, Homer Glen, Frankfort, Channahon and Lockport as defendants.

Similar lawsuits were filed on the same day in Cook, DuPage, Kane, Kendall, Lake, McHenry, LaSalle and DeKalb counties, according to Farmers Insurance officials.

Some "sewer water invasions" of affected properties in the Will County defendants' territories were so intense that "elderly men and women and young children were forced to evacuate parts or all of their homes because of safety concerns," the Will County suit states.

"Many sanitary sewer water invasions ... were so rapid that geysers of sewer water shot out from floor drains, toilets, showers and other basement floor openings," the suit alleges.

While the plaintiff's attorney declined to comment on the specifics of the complaint, the lawsuit states that hundreds of claims could be included in the proposed class action.

"The common, central and fundamental issue in this action is whether the Defendants have failed to safely operate retention basins, detention basins, tributary enclosed sewers and tributary open sewers/drains for the purpose of safely conveying stormwater," the lawsuit states.

Mayors for most of the towns listed as defendants in the complaint did not return requests for comment Monday and Tuesday.

Citing the ongoing nature of the litigation, Will County representatives also declined to comment.

The mayors of Shorewood and Frankfort said this week that the towns had yet to be served with the complaint.

Plainfield Mayor Michael Collins said he did not think the suit has any basis.

"It's really hard to write rules and regulations for Mother Nature," Collins said of the flooding, which saw a portion of downtown Plainfield submerged by the swollen DuPage River last year, as well as flooding along a creek that forced the overnight evacuation of a subdivision street. "There was very little we could do."

Frankfort Mayor Jim Holland said the town conducts regular maintenance of such systems.

Members of the potential plaintiff's class sustained uninsured losses to their properties and possessions due to the flooding, and the insurers paid money to policy holders for property damage and "emergency restoration and remediation of sewer waste contaminated homes," the suit states.

"Farmers has taken what we believe is the necessary action to recover payments made on behalf of our customers, for damages caused by what we believe to be a completely preventable issue, as well as to prevent it from happening again," Farmers spokesman Trent Frager said in a statement Monday.

Given the number of claims, claimants and damages involved, the class action is the appropriate method for fair and efficient adjudication of the case, the lawsuit states.

The suit alleges the towns had "actual or constructive notice" of sewer defects based on prior incidents and investigations of those past incidents.

The potential danger of failing to properly manage stormwater and sanitary sewer systems "was foreseeable and greatly outweighed the practicability and cost of proper management of its sewers," the lawsuit states.

The governments should have been prepared for a higher volume of rain that would fall more intensely and for a longer duration due to climate changes during the past 40 years, the lawsuit states.

The rain that fell on those two days in April 2013 was "reasonably manageable" by the towns and "was an ordinary rainfall experience" within the context of Will County's rainfall history, according to the lawsuit.

It was not an "'Act of God' rainfall," the lawsuit states.

"If this defendant had adopted reasonable stormwater management practices, the sewer water invasions suffered…would not have occurred," the lawsuit alleges.

Some of the towns named in the Will County suit have taken action to mitigate against future incidents and compensate those who found their basement flooded with raw sewage.

Naperville's leaders voted in June to take steps to improve its storm water and sanitary sewer systems after the flooding.

Councilmen approved a handful of projects June 18, including sanitary sewer lining and expansion of a cost-sharing program for residents who install special devices to prevent sewer backups.